Eugene Wallace Perry v. Randy Morgan

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________

No. 97-2930
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Eugene Wallace Perry, *
*
Plaintiff/Appellant, *
* Appeal from the United States
v. * District Court for the Eastern
* District of Arkansas.
Randy Morgan, Warden, Tucker *
Maximum Security Unit; K.L. Wade, * [PUBLISHED]
Tucker Mailroom Supervisor; Sam *
Heuer; John Doe; Leroy Brownlee, *
as member of the Arkansas Post-Prison *
Transfer Board; Mary Jean Bennett, *
as member of the Arkansas Post-Prison *
Transfer Board; Charles Chastain, as *
member of the Arkansas Post-Prison *
Transfer Board; Ermer Pondexter, as *
member of the Arkansas Post-Prison *
Transfer Board; James Stanley, as *
member of the Arkansas Post-Prison *
Transfer Board; Deborah Suttlar, as *
member of the Arkansas Post-Prison *
Transfer Board; Mike Huckabee, *
Governor of the State of Arkansas, *
*
Defendants/Appellees. *
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Submitted: July 16, 1997
Filed: July 30, 1997
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Before BOWMAN, WOLLMAN, and MURPHY, Circuit Judges.
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PER CURIAM.

Eugene Wallace Perry is scheduled to be executed on August 6, 1997 for the
1980 murders of Kenneth Staton and his daughter, Suzanne Ware. Perry's two petitions
for habeas corpus have previously been denied. 107 F.3d 665 (8th Cir. 1997); 871
F.2d 1384 (8th Cir.), cert. denied, 493 U.S. 959 (1989). Now before the court is an
appeal from the dismissal of his action brought under 42 U.S.C. § 1983 seeking
equitable and declaratory relief. Perry also asks for a stay of his execution pending this
appeal. We affirm.

Perry alleges that his application for executive clemency has been tainted by
reports that earlier this year he sought to obtain a book that apparently describes how
to kill someone with your bare hands. Perry denies connection to the book and claims
K.L. Wade and somebody else in the prison mailroom made it appear that he had
requested the book from his attorney, Sam Heuer. Heuer denied involvement in the
incident, but moved to withdraw as counsel for Perry after receiving a critical letter
from warden Randy Morgan.

Perry contends he has a right under the due process clause of the fourteenth
amendment to an unbiased consideration of his application for executive clemency, but
that the reports linking him to the book tainted his application. He claims that
Morgan, Wade, and an unknown employee of the mailroom (John Doe) created the
impression that he sought the book, that this and Heuer's withdrawal affected the
clemency proceeding before the Arkansas Post Prison Transfer Board (made up of
Leroy Brownlee, Charles Chastain, Ermer Pondexter, August Pieroni, Fred Allen, and
Railey Steele1), and that this would bias Governor Huckabee's ultimate decision. He
seeks a declaration that the defendants violated his due process rights and relief in the
form of a new hearing before unbiased decisionmakers and final determination on his
application by the lieutenant governor or some other person unfamiliar with the
allegedly false reports.2

The district court3 dismissed Perry's suit, holding that he has no constitutional
right to an unbiased consideration of his clemency application. The Post Prison
Transfer Board, which makes a non-binding recommendation to the governor on the
clemency application, Ark. Code Ann. § 16-93-204 (Michie Supp. 1995), then held
a hearing to review Perry's application, and unanimously recommended denial. There
is no indication in the record that the governor has yet decided whether or not to grant
clemency.

Even if Perry were able to prove that there were false reports about the book,
that such reports reached the decisionmakers, and that the reports affected their
decision about clemency, he would not have made out a violation of his constitutional
rights. The Arkansas clemency statute imposes no standards on what the board or the

1
We note some differences with the names in the caption of the case, but these
names are those discussed by the parties as being members of the board.
2
On July 25, 1997 Perry filed a second § 1983 case in which he argues that (1)
the Post Prison Transfer Board violated his fourteenth amendment due process right to
a full and fair consideration of his clemency application because it did not consider his
actual innocence claim; (2) the board violated his right to equal protection under the
fifth and fourteenth amendments because it considered his guilt, but not his innocence;
and (3) the board unconstitutionally required him to sacrifice his fifth amendment
privilege against self incrimination in order to assert his due process right to be
considered for clemency. This case is now pending before the district court.
3
The Honorable James M. Moody, United States District Judge for the Eastern
District of Arkansas.
governor may consider in making their decisions. Ark. Code Ann. § 16-93-204. The
statute calls for the board to investigate a clemency application and to make a
recommendation to the governor, but the governor is not bound by that
recommendation. Id. "When a commutation statute does not impose standards
constraining the discretion of the board as to when clemency must be granted, the
statute does not create a constitutional right or entitlement sufficient to invoke the Due
Process Clause." Whitmore v. Gaines, 24 F.3d 1032, 1034 (8th Cir. 1994) (discussing
the Arkansas statute) (citing Connecticut Bd. of Pardons v. Dumschat, 452 U.S. 458,
466-67 (1981); Otey v. Hopkins, 5 F.3d 1125, 1128-29 n.3 (8th Cir. 1993)); see also
Wainwright v. Brownlee, 103 F.3d 708, 709 (8th Cir. 1997) (per curiam) (rejecting
claim that due process rights were violated because clemency decision-makers were
biased). The district court did not err in dismissing Perry's action.

The judgment is affirmed, and the motion for a stay of execution is denied.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.